part_time_jobsThis one is a real headache.

Sam oversees a storage area for the Connecticut Department of Transportation (ConnDOT) and during certain times of the year, his position requires a fairly extensive amount of overtime. For years, Sam has suffered from “cluster headaches,” which are far worse than migraines and can last for days.  Sam’s physician tinkered with medication over the years, but nothing helped.

Sam’s doctor later determined that Sam’s excessive work schedule during periods in which he worked overtime was one of the main factors that triggered his headaches. Therefore, he limited Sam’s work to no more than eight hours per day, and he also prohibited overtime. Permanently. These restrictions were provided on an FMLA certification form.

What do you think ConnDOT did here?  Did it: a) agree to allow him to take FMLA leave whenever overtime would be required?; or b) tell Sam overtime is an essential function of the job, and if he could not work OT, he either needs to resign or seek disability retirement?

Here, ConnDOT chose the latter, reminding Sam that overtime was an essential function of his position and that under the union contract, if he couldn’t perform all the essential functions of his position, ConnDOT would need to try and transfer him to another position. ConnDOT also told him that he needed to submit medical certificate in order to take FMLA leave, but it made one thing clear: if the certification confirmed Sam could not work overtime, he would have to resign or seek disability retirement. As the story goes, Sam’s certification confirmed that he could not work OT.  Not a single hour of it.  Sam later resigned after ConnDOT could not locate another position for him. He later filed an FMLA lawsuit.

The Court Ruling

In response to Sam’s FMLA claim, ConnDOT made a rather sound argument, and one that other courts have bought into: an employee cannot seek leave for incapacity that may (or may not) occur at some point in the future.  In other words, the employee can take FMLA leave only if he is presently incapacitated because of a serious health condition. Recall my old post about Pat Hurley, the CEO who asked his company to approve leave in advance for various dates over an upcoming two-year period because he needed to address his stress?  There, a federal appellate court turned Pat and his FMLA claims away, finding that FMLA did not cover periods of time that “potentially” qualified as FMLA leave at some point in the future.

Wasn’t Sam effectively making the same argument here, and shouldn’t he suffer the same fate as Pat above?

Sam’s situation was different, said the court, and here’s why:  The FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary.”  Moreover, ConnDOT’s position that the employee must be incapacitated from working in order to obtain FMLA leave actually is belied by the FMLA regulations, which interestingly state as follows:

Absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report . . . because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. 29 CFR 825.115(f)

As a result, the court determined that Sam could take “prophylactic” FMLA leave because his doctor opined that he could come to work when he is required to work certain excess hours [kind of like the excess pollen count].

Does the FMLA Turn a Full-Time Position into a Part-Time Position?

The court also addressed a larger issue that it acknowledged was a novel question: Could Sam use his annual FMLA allotment to effectively convert his full-time position into one that no longer required overtime?  Or taken further, could an employee use FMLA leave also to convert a full-time position into a part-time version of the same?  In short, the court said “Yes,” and reminded us that the FMLA does what the ADA cannot.  Specifically, the ADA does not require an employer to eliminate an essential function (such as overtime) or provide an accommodation that would cause an undue hardship.  However, the same is not true for the FMLA. Notably, the FMLA directly applies to situations where the employee cannot perform essential job functions, and as we know, there also is no undue hardship defense under the FMLA.

Tough FMLA luck for employers, so says this court.  Santiago v. Connecticut Department of Transportation, et al.

Insights for Employers

There are several takeaways here:

1.  If you want to hear more about this case and its practical impact on employers, access my recent FMLA webinar on the topic.  For those of you paying really close attention, you will remember that I highlighted Sam’s case as a contrast to the Pat Hurley case above.  So, access this webinar for extra FMLA nerd points.

2.  There is NO undue hardship argument available under the FMLA. ConnDOT’s loss in this case is a reminder that the FMLA can have brutally harsh results for employers. As we see above, the FMLA presumes that it will cause employers hardship — as in Sam’s situation, when an employee is excused from essential functions of the job, these tasks fall directly to other employees and can wreck havoc on an employer’s operations.  That’s the unfortunate reality of the FMLA. If we were in an ADA situation [for instance, if Sam had exhausted FMLA leave and was seeking additional leave under the ADA], we could make a case for undue hardship: other employees have been required to take on the duties of the absent employee; even more overtime will need to be paid out; managers have been required to cover certain tasks, leaving voids elsewhere; projects have been deferred because of inadequate staffing; and morale has been adversely impacted.

However, we are unable to make the same undue hardship argument under the FMLA. Why should that be?  If the Department of Labor ever asked for my opinion [which, of course, it won’t] on how to improve the FMLA regs, adding the “undue hardship” provision is one suggestion I’d offer.  Of course, we would need to balance such a defense between the rights of employees and employers, but the concept should be in play, even in FMLA situations.

3. Don’t Forget that the FMLA and ADA may BOTH apply to a request for leave or reduced work schedule. When an employee requests FMLA leave for his own alleged serious health condition, an employer is well advised to initiate the ADA’s interactive process to evaluate whether the employee may require a reasonable accommodation in addition to FMLA leave. If an employee’s leave request implicates both the FMLA and the ADA, the employer must analyze its obligations under each act. Keep in mind: the employee is entitled to the benefits of whichever law provides the employee with the greater protection. For the reasons stated above, the FMLA offers more protection in this instance.

4. For those who really want to delve deeply into the legal morass here, I believe ConnDOT could advance a strong argument on appeal in this case. Specifically, as to the question of whether intermittent FMLA leave can effectively turn a full-time position into a permanent part-time position, the court seemingly overstates (at pages 16-17) the DOL’s guidance in this area.  Citing a 2006 DOL report, the court found persuasive the DOL’s alleged position that an employee should be entitled to FMLA leave even though the employee’s condition is permanent and will prohibit the employee from ever working full-time.  However, the DOL has not officially taken this extreme a position.  In the DOL opinion letter cited by the court at page 17, the DOL states that FMLA is available to an employee even though the employee’s condition is permanent and the employee “will more than likely not be able to return to full employment in the near future.” (My emphasis) Not being to return to full employment in the near future is a far cry from not ever being able to return full-time.  The court in this case took the DOL’s stated position too far, thereby undermining its reasoning on a very critical issue in this case.

ladderNote to self: When one of my employees:

  1. falls off a ladder at work,
  2. is taken to urgent care by the company’s HR Director,
  3. asks whether the FMLA would apply to his absence,
  4. then, as a result of his doctor’s orders, takes a multi-week absence after the fall from the ladder…

I’m going to side the with the 99% of Americans who believe this fact pattern has put me on notice of the employee’s likely need for FMLA leave.

Yet, when this scenario actually occurred with an Indiana employer, the employer decided these series of events did not constitute proper notice from the employee of the need for FMLA Leave.  Years later, this company is paying the price.

The Facts

Mark worked in the parts department for Utility Trailers, and during one of his shifts in late March 2010, he fell off a ladder, re-aggravating a preexisting back injury. The HR Director was alerted to the accident, and she determined that Mark needed to go to the local urgent care immediately. She even took Mark to the urgent care and waited while he was treated.

Within days after the incident, Mark sought treatment from his personal physician, who ordered him to stop working for the time being (because of the fall). Within two days following the ladder accident, Mark delivered his doctor’s restrictions to the HR Director. When Mark met with HR, he claims to have asked the HR Director if he “should have FMLA leave.” She thought FMLA leave would not be necessary, telling him, “Because you’re only going to be gone a few weeks, you should be fine.”

Two weeks into his leave of absence in early April 2010, Mark called the company to determine whether he could return to his former position if he returned to work by early June 2010.  The HR Director told him that he could return, but only to the second shift [his original position was on the first shift].  A few weeks later, however, the company contacted Mark to let him know that they needed to fill his position because it did not have enough employees to cover for him while he was out.

As the story goes, the company told Mark that if he was “completely released from [his] doctor wherein [he] could do manual labor . . . Mark could reapply for a position . . . if one is available.”

Mark never reapplied for a position. Instead, he filed a lawsuit.

The Ruling

You might have guessed it — this judge sided with the 99% of Americans in determining that the nature of the employee’s injury and his subsequent inquiry about whether FMLA leave would apply clearly put the employer on notice that his absence might be covered by the FMLA.  As a result, the court determined that a jury would have to decide whether the employer violated the FMLA. George v. Utility Trailers of Indianapolis  The case recently settled short of trial.

Insights for Employers

Plenty of lessons to learn from this employer’s trip up:

  1. Employers must do a better job of identifying when employees put them on notice of the need for FMLA leave.  The employee need not use the letters F-M-L-A to request leave under the Act, but context and content count. Look at what happened here: a fall from a ladder, a trip to the urgent care, a lengthy leave of absence that a physician determined was necessary as a result of the fall, and an employee’s inquiry as to whether the absence should be covered by FMLA.  There was little ambiguity — the employer got whacked over the head with the requisite notice.  At that point, it had an obligation to determine whether the absence was covered by FMLA and designate appropriately. It did not, and it was a costly mistake.
  2. Notice the ultimate the company gave the employee: When you’re “completely released” from your physician, then you can reapply for employment.  Employers need to distance themselves from this kind of terminology.  When we communicate to an employee that they must be fully healed or completely released, we fail under the ADA to engage in an independent assessment as to whether the employee might need a reasonable accommodation to return to work.  Check your model correspondence now and rid yourself of this kind of language.
  3. Remember the restoration rights of employee’s returning from FMLA leave.  Without question, the FMLA burdens the manner in which employers staff their operations.  The FMLA was passed knowing that it very well would create a hell of a time for employers like Utility Trailers to properly staff their parts department when an employee is off on leave for weeks on end.  Unlike the ADA, there is no “undue hardship” argument under the FMLA, so we must live with the reality that FMLA absences often hamper our ability to properly staff our operations.  We may not like it, but have to accept it.
  4. Also as to restoration, the FMLA regulations presume that the employer will return the employee to the same shift, since a return to a different shift (particularly when it’s a move from 1st to 2nd shift) is not an equivalent position.  See 29 CFR 825.215e

webinar1.jpgThanks to those who attended my webinar last week with Ellen McCann on “Managing Red Flags and Staying Ahead of the Trends.”  If you missed the program, you can access the webinar and materials here.

In a mere hour, Ellen and I covered a number of hot FMLA topics and trends, such as:

  • Conducting an effective investigation after you obtain photos or information through social media suggesting that your employee is abusing FMLA leave
  • The latest on caring for a family member where travel (with the family member) is involved
  • How Employers should send FMLA notices in light of recent cases indicating that U.S Mail and email might not be good enough
  • How Employers should handle situations where an employee needs leave but doesn’t want the absence designated as FMLA leave

I’m out of breath just thinking about all the real estate we covered!  And in a moment of pure insanity, I even sang an FMLA Thanksgiving song about a turkey named Albuquerque (which of course can be skipped over in the recording). Despite my singing, we are pleased to made the webinar recording and PPT materials available here. Feel free to pass this link along to anyone who might be interested.

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed. Feel free to post a comment here or email me at jsn@franczek.com.

ygmlogo.gifWe have a mini-FMLA crisis on our hands this week, and the courts are to blame.  This issue involves the FMLA notices that employers send to employees, but more importantly, the delivery route in which they send them.

You may recall that, a couple months back, I analyzed a decision by a federal appellate court which found that an FMLA notice sent to an employee by U.S. mail cannot be trusted because the employer cannot confirm whether the employee actually received it.

Get a whiff of this — this past week, a different federal court has determined that notice sent by email is not reliable either.

The Facts

Summer worked for MotorCity Casino, and over the course of many years, she had taken FMLA leave due to a degenerative spinal disorder, which made it difficult for her to work on her feet several days in a row. In September 2011 alone, Summer took intermittent FMLA leave nine times, which was five more than anticipated by her physician, and she also had called off work every Sunday that month.

As any reasonable employer would, the casino sought recertification of the condition due to the increased frequency and her Sunday absence pattern. It sent its FMLA notices to Summer by email, instead of U.S. mail as it had done in the past.

As the story goes, the employee claimed that she did not receive the emailed FMLA notices. Whoa, what a shock!  About as shocking as my 7-yr old saying that he didn’t hear me when I asked him to clean his room. We knew the answer before we asked the question. Caught in spam filter . . . must have been a server problem . . . simply vanished into thin air. In any event, when Summer failed to return the recertification (despite an initial and subsequent request to do so by the casino), her absences were considered unexcused, and she later was terminated.  Summer lawyered up and sued.

The Ruling

As an initial matter, the court noted that the FMLA regulations only require that the employer provide the employee oral notice of the need to provide recertification. The court apparently found this method to be the most desirable, since it guarantees person-to-person communication. (Of course, the court glosses over the fact that this method sets up a he said-she said situation virtually every time.)  As to FMLA notice sent by email, the court framed it up this way:

Defendant had the right to require Plaintiff to recertify her FMLA leave … Specifically, the issue is whether Defendant [through its TPA], by informing Plaintiff of the recertification requirement via email, gave Plaintiff proper notice of that requirement … The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.

And with that quick stroke, the court refused to dismiss Summer’s FMLA claims, finding that the dispute over whether she actually received the FMLA notices by email precluded a dismissal of her FMLA claims. As a result, the court determined that only a jury could decide whether the casino violated the law. Gardner v. Detroit Entertainment LLC dba MotorCity Casino

Insights for Employers

Let me get this straight — one court just told us snail mail is unreliable for sending FMLA notices.  Now, another tells us electronic mail is unreliable for sending notices?  Someone please explain to me: How exactly does an employer ensure that an employee has received FMLA notice?  Is our only option to deliver it directly to the employee’s front door, with balloons and an entourage, ala Publishers Clearing House? [Never mind – Ed McMahon passed away several years ago, so the employee surely would deny having received delivery of that notice, too.]

Corporate communications are increasingly being sent electronically, so this court’s insistence in this day and age that the employer show that the email actually was delivered (despite the clear email trail) is ludicrous.  Moreover, as to the employee’s denial that she “approved” communication by email, it rings hollow. The TPA handling the casino’s FMLA administration obtained Summer’s email from Summer herself. When she provided her email address to the TPA, should she not have some expectation that the TPA would then use the email address to communicate with her?  Never mind — that makes too much sense.

What’s ultimately troubling here is that, in a matter of two months, a couple of courts have given employees a platform (whenever it’s convenient to them) to unabashedly deny having received FMLA notices that come through the most reliable means of communication today. In turn, courts are inappropriately placing far too heavy a burden on employers and their TPAs to establish that the FMLA notice delivered through the mail slot or directly into the Yahoo or Gmail inbox actually made it to them, even though we should have every confidence that the notice arrived exactly as expected.

Forgive my rant. But now that we’ve calmed down a bit, what do we do about this mess?

1.  There seems to be an increased value in providing the FMLA notices and required certification to the employee in person and having the employee sign a confirmation of receipt.  If the employee is on site when the notices are to be sent, I recommend providing them in hand to the employee and obtaining written confirmation.

2.  Occasionally, in-person delivery is not feasible, and of course, it’s never an option for TPAs. So, then what? Employers are well advised in these instances to send notices in a manner that requires proof of receipt, such as certified mail or overnight mail.  No question this is costly, especially for TPAs, but it’s seemingly the only method of delivery courts will accept if employers want to prevail on summary judgment and avoid a trial.

3.  What about requiring employees to confirm up front that email communications are an acceptable means of communication for FMLA notices?  I encouraged this option in my previous post on the topic, and it may have saved the casino in this instance, particularly where it was transitioning from snail mail to email for its communications with Summer. Keep in mind, though, that this confirmation option still has some gaps, as you undoubtedly will encounter employees who fail or refuse to sign a document confirming their agreement to email communications.

4.  I hold my nose as I offer this suggestion: in instances where the employee claims to have not received the FMLA notices, employers should reconsider whether termination is the appropriate option. At a minimum, we now must closely review the situation to determine whether it is plausible [holding nose] that the employee did not receive the notices. Afterward, we should carefully assess the risk in terminating the employee, particularly where (as we had here) the employee promptly turned in certification after she informed the TPA that she had not received the requisite notices. I hate giving employees this cop out, but I also don’t like subjecting my employer clients to the liability incurred here and in the case referenced in my previous post.

As a related aside: Upon reading the court’s decision, did anyone notice yet another error made by the court? At the end of the opinion, the court further explained that the casino should have given the employee the opportunity to “cure” the “incomplete” certification. When the employer failed to do so, the court found another issue for trial. As a matter of law, the court got it wrong. The employer’s beef here was not that the employee turned in an incomplete or insufficient certification.  To the contrary, the problem (as we know) is that she didn’t return the darn certification within 15 days after having received it.  Indeed, there was nothing to “cure.”  Another issue for the appeal, I suppose.

Excuse me now.  I’m going to try and get that Publishers Clearing House tour going again, as I think I might have just found a second calling…

(HT to my fellow blogger Eric Meyer, who tipped me off to this case)

Junk mailWith all the FMLA paperwork that a leave administrator has to provide an employee during the FMLA process, you’d wonder whether you’re attending a real estate closing. All these documents — whether it’s the Notice of Eligibility, medical certification, or the Designation Notice — typically get sent by good old fashioned snail mail, delivered by your friendly neighborhood U.S. postal worker.

Back in the day, we could rely on that package arriving safely at its destination. And on time.  We were so sure of the U.S. mail’s accuracy and efficiency that the courts recognized the “mailbox rule,” under which we presume that a letter which is properly sent with postage reaches its destination in a timely fashion and actually is received by the individual to whom it was addressed.

This week, however, a federal appellate court took a sledgehammer to the mailbox rule, finding it to be a relatively weak indicator that the addressee actually received the correspondence sent to him.  As a result, employers and third party administrators responsible for sending these notices are left wondering whether notice by U.S. mail is acceptable anymore.

Let me explain.

The Facts

Lisa worked for Corinthian Colleges an as instructor.  During the relevant time period, she was dealing with some personal issues and, as it turns out, she was battling depression.  Her boss encouraged her to take some personal leave. Lisa agreed, and she completed a leave of absence request form seeking “personal leave.” A short time later, Lisa provided complete FMLA medical certification to the College supporting her need for leave. As a result, the College properly converted her request for “personal leave” into one for FMLA leave, and it sent by U.S. mail the appropriate FMLA notices designating her absence as such.

Lisa required leave from December through mid-March, which was 14 weeks later.  Several weeks thereafter, Lisa provided documentation from her physician fully releasing her to return to work.  By this point, however, the College told her she no longer had a job because she didn’t return to work after her 12 weeks of FMLA leave expired.

So said Lisa: “What FMLA? This is the first time I knew my absence was being classified as FMLA leave…I never received notice that this was FMLA leave.”

Lisa sued the College, alleging that it violated the FMLA when it failed to give her notice that her absence was covered by the FMLA.

The Ruling

The issue of whether Lisa received the FMLA notices was central to her FMLA lawsuit.  According to the court, if the College could show that Lisa actually received its FMLA correspondence, her FMLA claims would fail.

The court then analyzed the strength of different forms of notice.  Certified mail, for example, offers a “strong presumption” of receipt by the addressee.  Regular mail, however, assures only a “weaker presumption.”   The court determined that this “weaker” presumption is nullified whenever the addressee’s denies receipt of the mailing.

Think about that: a letter is not considered delivered by regular U.S. Mail whenever the addressee proclaims he or she did not receive it.  And here, Lisa’s denial allowed her the opportunity to submit her FMLA claims to a jury.

In its reasoning, the court explained what kind of delivery should be required in today’s day and age:

In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.  (My emphasis)

Lupyan v. Corinthian Colleges (pdf)

Insights for Employers

I fear this decision is a bit of a game changer when it comes to confirming that an employee actually has received FMLA notice.  And it poses a very real and costly problem for employers and TPAs.  Let’s face it — employees regularly claim they failed to receive a notice given to them or sent to them in the U.S. mail. In nearly every Plaintiff’s deposition I take, they deny receiving some kind of notice from their employer. Now, they can defeat summary judgment simply by denying that they failed to receive an FMLA notice sent by regular mail? Criminey!

Disagree as we might with this decision, what do we learn from it?

  1. There is no question that the federal appellate court here is insisting upon a higher threshold for FMLA notice.  As the court told us in no uncertain terms, if employers want to maximize their chances of dismissing an FMLA claim short of trial, they have to use “some form of mailing that includes verifiable receipt” when sending FMLA notices.  Therefore, in jurisdictions covered by this court (which handles appeals from Pennsylvania, New Jersey and Delaware), it is advisable to send all FMLA notices by certified mail, overnight mail or email, since these are relatively capable of verifiable receipt.  Hand delivery is good, too, so long as you obtain a signature that the employee received it.  One thing to keep in mind when it comes to email: Email communications present their own dilemma, since these communications often can be filtered right into a junk mail folder, never to be seen by the intended recipient.  If you intend to use email as a means of communication with your employees, first seek their permission and confirmation that email is an acceptable means of communication regarding FMLA notices.  (Work with your legal counsel to draft this document.)
  2. I see such a lost opportunity here.  Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave?  We’ve addressed these situations before — when you don’t communicate regularly with an employee on an extended leave of absence, you increase your problems exponentially.  This case serves as yet another good example.  If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Can I get an Amen!?! Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process.  Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee.  As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!
  3. This decision also is a reminder of what not to do when FMLA leave ends.  What else did the College do wrong?  First, it insisted that the employee return without restrictions.  We should recall from previous posts that requiring an employee to return 100% healed is an ADA problem.  Don’t do it.  Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.  I discussed this in a previous post, too.

In the meantime, I’m going to the post office to pick me up some green certified mail cards.  Anyone need some?

holiday-payThere must be something in the water, but several clients have asked me this week whether they are required to pay an employee for the Memorial Day holiday even though the employee was out on FMLA leave. Interesting question, and the answer is fairly straightforward: treat them the same way you would treat another employee on non-FMLA leave.  This issue is governed by 29 C.F.R. § 825.209(h), which states:

An employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).

Put in simple terms, you first look to treat the leave in the same manner you treat other forms of non-FMLA leave.  If FMLA is being taken in conjunction with paid leave, look to the manner in which you treat employees on paid leave.

In her firm’s blog, Sara Jodka illustrates the point with a common scenario:

Suppose you have an employee who is taking vacation time during the holiday week and your policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday. Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee’s paid vacation leave, or whether it is simply an unpaid leave under the FMLA. If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow that for the employee on FMLA leave. On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the employee on FMLA leave. Employers just have to be sure they are treating employee consistently with similar forms of non-FMLA leave under your policies.

The Department of Labor addressed this issue head on in one of its first FMLA opinion letters in 1993. There, the employer did not provide holiday pay to any employee on personal leave or educational leave, which were unpaid forms of leave.  Because FMLA by its very nature is unpaid, the DOL opined that the employer was not required to pay holiday pay in this instance because it did not provide holiday pay to those employees on unpaid leave.  However, if the employee was entitled to obtain holiday pay while on paid leave, “the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave.”

Insights for Employers

To pay or not to pay for the holidays rests largely on the language in your personnel policies.  In my model FMLA policy, when addressing non-group health benefits, I make clear the expectations with respect to payment of holidays that occur during FMLA leave.  Consider adopting this language in your own FMLA policies:

Consistent with Company policy for all types of leave, you will not accrue vacation or other benefits while you are on unpaid FMLA leave. Additionally, you will not be paid for holidays that occur during the leave. However, the leave period will be treated as continuous service (i.e., no break-in-service) for purposes of vesting and eligibility to participate in the Company’s retirement plan.

Bottom line: Treat employees on comparable leaves in the same fashion.   It will help insulate you from an FMLA claim.

ConfusedHere’s a shout out to all you employers out there who forget to send your employees the proper FMLA notices when they seek leave for a reason covered by the FMLA. Occasionally, the courts have your back, despite your lack of attention to detail.

As I have discussed before, when an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and Rights & Responsibilities Notice (which usually is accompanied by a blank medical certification form).  Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice.  If you don’t send these notices to your employees, you risk an FMLA violation.  Ask Wackenhut, which was held liable in an an FMLA interference lawsuit simply because it failed to provide these standard FMLA notices.

But then comes Scott Bellone v.  Southwick-Tolland Regional School District (pdf).  In Scott’s situation, he didn’t receive a proper Notice of Eligibility.  In fact, when he sought a leave of absence, the “Notice” he received with his blank medical certification form could not remotely be considered a Notice of Eligibility, since the document essentially said nothing more than, “Hey, Scott, fill this [medical certification] form out and get it back to us in 15 days.”  [Well, it didn’t really say that, but I’m not far off. Here’s an original copy of it.]

When Scott returned the medical certification completed by his health care provider, the employer did not send him a designation notice right away.  In fact, it waited until his 12 weeks of FMLA leave were exhausted, and then waited another four weeks.  At that point, it sent him the Designation notice, which retroactively designated the previously exhausted 12-week period as FMLA leave.

Scott was terminated a short time later for reasons not directly related to his leave of absence.  When he filed suit against his former employer, he claimed — among other things — that his employer violated the FMLA because it did not provide him proper or timely FMLA notices.  Had he known that the absence was being classified as FMLA leave, so he argued, he would have planned out his leave of absence in a manner which would have allowed him to use some leave time later.

Employee Must Show Failure to Provide FMLA Notices Harmed Him

Had Scott brought this case before Wackenhut court (see case reference and link above), his FMLA claim might have had some legs to run.  But the court reviewing Scott’s claim took a far more pragmatic approach (and one I wish the DOL would endorse).  On one hand, the employer technically violated the FMLA when it failed to provide Scott proper and timely FMLA notices.  On the other hand, however, Scott took about 16 weeks of leave, which outstripped the 12 weeks provided for under the FMLA.  Thus, the deciding factor for the court was that Scott failed to provide any evidence that he actually could return before his leave ended or that he would have structured his leave differently had he been provided appropriate notice.  The Court put it this way:

the School District came forward with affirmative evidence demonstrating that [Scott] was unable to return to work before the end of the academic year. At that point, it was up to [Scott] to establish a genuine issue for trial by presenting more than just a bare allegation that he could have done things differently if he had known that his leave would count toward his FMLA entitlement.

For the court, “nothing was lost, nor was any harm suffered, by reason of the [failure to provide proper and timely notices].”   In short, the court adopted the approach taken by the U.S. Supreme Court in Ragsdale v. Wolverine Trading (ultimately adopted in the changes to the 2009 FMLA regulations), which held that late or inadequate notices are not actionable unless they harm the employee.

Insights for Employers

The employer dodged a bullet here.  I share this case not to highlight employer best practices [clearly, the employer’s actions here are not a model for us to follow], but as a reminder that the way to go — indeed, the best practice — is to provide proper and timely FMLA notices.  When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and Notice of Rights and Responsibilities.  When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.

If there are no exceptions to this practice, we stay compliant.  And we avoid results like the one I highlighted in Wackenhut.  This makes your risk managers happy.  And you will pay your employment attorneys far less.  [We’ll get by…sob, sob…]

funny-looking-rooster-chicken.jpgWhat do you do when one of your employees has informed you of what clearly is an FMLA-triggering event (she needs to care for her dad who is seriously ill in the hospital), but then tells you she doesn’t want the absence designated as FMLA leave?  I’ll share my opinion below, but in the meantime, one of the most employee-friendly courts in America just told us this past week that you can grant the employee’s wish and not designate the absence as FMLA leave, even though it otherwise would be covered by the FMLA.  

Although we are barely three months into the new year, I predict this decision, Escriba v. Foster Poultry Farms (pdf), will be one of the Top 5 most influential FMLA cases of 2014.  So, for this reason alone, the analysis below might be worth the read. 

The Facts

Maria worked at a poultry processing plant owned by Foster Farms.  By any measure, Maria was a pro on the FMLA circuit: throughout her employment, she took FMLA leave on 15 different occasions.

In November 2007, Maria approached her direct supervisor, Linda, to request time off to care for her ill father in Guatemala. Maria, whose second language is English, explained to Linda that her “father is no good” and was in the hospital.  So, she stated, “Linda, for me, vacation.”  Linda responded, “Okay, Maria, you vacation.”  She told Maria she would approve two weeks of vacation.

Later that day, Maria approached Linda again, this time stating, “Please one week or two week free for me,” which she later explained meant she was asking for unpaid leave in addition to vacation.  Linda rejected her request.

Still apparently confused, Linda returned with another supervisor who acted as an interpreter and, through a series of questions, confirmed that Maria did not want to take any more than the two weeks of vacation she had just been granted.

Afterward, Maria reached out to Ed, the facility superintendent, and explained (in Spanish, which he understood), “I’m on my way to Guatemala . . . because my dad is very ill.  I am only going with two weeks vacation [but] wanted to know if you could do me a favor and give me one or two weeks more leave.”  Ed told her he could not provide any additional leave.  

Thereafter, Maria left for Guatemala.  She remained there well past her return date, and she didn’t contact Foster Farms until 16 days after she was scheduled to return to work.  As a result, Maria was terminated for violating the Company’s three day no-call, no-show rule.

Court Decision

After her termination, Maria filed an FMLA interference claim.  Her argument was straightforward: the reason for her leave—caring for her ill father—triggered FMLA protection, and she notified her employer of the need for leave for this purpose, so her employer was obligated to designate her absence as FMLA leave. Because of the “he said, she said” nature of the allegations, the case proceeded to a jury trial, where the employer prevailed.  Maria appealed the jury’s verdict.  

At issue in the appeal was whether an employee can affirmatively decline using FMLA leave, even though the underlying reason for leave would have been FMLA protected leave.  To this question, the court answered, “yes.” 

In reaching its decision, the court focused on the FMLA regulations’ expectation that the employer engage in an informal process to obtain additional information about whether the employee is seeking FMLA leave.  Therefore, according to the court, the regulations suggest that “there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA” in order to preserve her FMLA leave for a later time. 

Interestingly, on no fewer than 15 previous occasions, Maria requested FMLA leave directly from Human Resources, as required by Company policy.  According to the court, her failure to do so on this particular occasion only further indicated that she did not wish to utilize FMLA leave to protect her absence. 

Judgment for employer affirmed.  

What is Wrong with the Court’s Decision?

Ugh.  I don’t like this decision, largely because its holding undoubtedly will leave employers unsettled as they determine whether to designate FMLA leave in the future. Don’t get me wrong — I root for employers, so I’m doing the happy dance for Foster Farms because they prevailed. But what’s good for Foster Farms on this occasion is a mess for the rest of us.  

Simply put, the court’s reasoning is contrary to the common understanding that employers designate an absence as FMLA leave whenever it is taken for an FMLA-qualifying reason, regardless of what the employee might want.  There are good reasons for designating these absences as FMLA leave:

  1. It actually avoids administrative nightmares for employers. To try and divine the intent of someone like Maria will lead to chaos. Contrary to what the Escriba court might suggest, it is far easier from an administrative standpoint to designate FMLA leave when the leave qualifies as such. Employees’ preferences should not control the issue.   
  2. Designating an absence as FMLA leave where it qualifies as such protects the employee’s job.  If the leave is not designated as FMLA leave, the employee’s absences are subjected to the employer’s attendance policy, which undoubtedly will lead to more employee terminations. Perhaps an unintended consequence of the Escriba decision?  
  3. If an employee has the flexibility to choose when and where FMLA applies, employers effectively provide employees more leave than they are legally entitled. Take Maria’s situation, for instance. Under Foster Farms’ FMLA policy, her paid leave and unpaid FMLA leave should have run concurrently.  Thus, the maximum amount of leave available to her (between her paid and unpaid time) would have been 12 weeks. However, if you allow her to control whether FMLA applies, she can exhaust all of her paid leave first (which we know was at least two weeks) and then use another 12 weeks of FMLA leave at a later date.   
  4. Building on this last point, as a practical matter, employers want FMLA leave to exhaust sooner, rather than later. So, for the far majority of employers, the Escriba holding will not be well received, since it endorses an employee’s ability to stack paid leave and unpaid FMLA leave consecutively rather than concurrently.  

There were plenty of thoughtful reasons the court could have employed to affirm the jury’s defense verdict here, but it chose not to.  For instance, the court could have decided that Maria did not provide adequate notice of the need for FMLA leave because she did not follow the employer’s usual and customary policy for reporting leave to Human Resources.  It also could have taken the approach that Maria simply was not entitled to reinstatement to her job because she went AWOL — indeed, the record indicates that she blew past her return date by 16 days before contacting Foster Farms.   

Insights for Employers

Of course, you’re wondering: This is all fine and good, but Jeff, would you just tell me how I handle leave requests in the future where the employee informs me that he doesn’t want FMLA leave to apply?

To be candid, my recommendation is to ignore the Escriba decision and designate the absence as FMLA leave if it indeed qualifies as such.  For me, the FMLA regulations are clear.  At 29 C.F.R. 825.301(a), the DOL tells us, “Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.  

For ages, I’ve counseled my clients in these situations to designate the absence as FMLA leave and remind the employee of two things: 1) the employer has no choice in the matter — once the absence qualifies under the FMLA, the regulations require the employer to designate the time as FMLA leave (under Section 825.301(a)); and 2) it actually works to the employee’s benefit to designate the time as FMLA leave, since it ensures that their job is protected during leave.  I explained this in a blog post last year, if you want further guidance on this situation.

Despite the Escriba decision, and with all respect to the Ninth Circuit Court of Appeals, I’m not changing my tune now.  And neither should you.

Pink floyd.jpgHello…hello…hello…is there anybody in there? Just nod if you can hear me. Is there anyone home?  

Have your employees have become so evasive in their requests for medical leave that you feel like signing Pink Floyd’s “Comfortably Numb” to get them to talk? Have no fear — you don’t have to become that numb in order to effectively administer FMLA in these situations.

Take heart — in case after case in 2013, federal courts everywhere have been slapping down FMLA lawsuits where the employee either: 1) failed to follow the employer’s customary call-in procedures; or 2) neglected to provide the employer enough facts to indicate that an absence might be covered by FMLA. We have one good thing going: courts are far less forgiving when employees don’t properly communicate with their employers about their need for leave.  As a result, I encourage employers to be more aggressive when it comes to requiring notice under the FMLA.

Here are a few recent real-life examples that should bolster our confidence as employers:

  • As Eric Meyer noted recently in his employment blog, an employee who needed hernia surgery (an absence that otherwise would be covered by FMLA leave) assumed that he did not need to call in his absences while he was out for the surgery because he had previously met with his employer to discuss his upcoming surgery.  However, the employer’s policy required him to call in more frequently, and when it didn’t, his failure to do so equated to a bunch of unexcused absences — and his termination.  White v. Dana Light Axle Manufacturing (pdf)
  • A federal appellate court ruled earlier this summer that an employee’s text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father. Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf)  Same result in another “texting” case, where the employee simply texted that she was not well, and even after much prompting, texted, “As of today, I will be off until July 12th per my doctor for medical reasons.” Here, the court found these messages were insufficient to trigger FMLA protections and the plaintiff’s FMLA claims were dismissed.  Banaszak v Ten Sixteen Recovery Network (pdf)
  • Just last week, a federal trial court knocked out FMLA claims by a fire battalion chief because he simply failed to inform the fire department that he would be taking several days of sick for a follow-up procedure on his heart.  When pushed, the employee could not remember if he told his employer any details whatsoever as to the reasons why he was missing work.  This level of evasiveness doesn’t cut it when it comes to the FMLA. Freeman v. City of Little Rock (pdf)

Insights for Employers

What are the takeaways from these cases? 

  1. Maintain effective call-in procedures:  Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.
  2. Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe with further questions the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies.

• First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you’ll also want to include expectations for completing a leave of absence request form, which I also recommend.) My “model” policy provision looks something like this:

• When you contact Human Resources to report your need for leave, you must provide at least the following information:

o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;

o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

o A telephone number where you may be reached for further information.

• Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.

If all else fails, perhaps you consider belting out a few bars from “Comfortably Numb” [“Relax. I need some information first. Just the basic facts. Can you show me where it hurts?“]. That sounds a little creepy, so don’t do that.  

But you get my point.

bullhorn.jpgEmployers, can we have a heart to heart?  I need to get something off my chest.  You see, I’ve witnessed a disturbing trend lately in the court cases I’m reading and in your FMLA practices: too many of you are not recognizing when an employee’s leave request may be covered by the FMLA.

Let me share a real life situation that illustrates my point.  

Christine Dollar supervised a bunch of truck drivers at Smithway Motor Xpress. Dollar also suffered from depression.  In March, she missed several workdays for some rather ambiguous reasons.  By June, her depression apparently worsened, and she suffered periods of anxiety and insomnia severe enough that a friend took her to the emergency room for treatment.  

Dollar called her supervisor before her shift the following day to inform her employer that she would not be reporting to work that day.  The following day, she called her supervisor again to inform him that she was seeking treatment at a mental health center and had received a doctor’s note keeping her off work for another week.  Dollar provided her employer this note, which clearly indicated she was being treated for depression.  

Two days later, however, Dollar’s supervisor informed her that she no longer would be working in her current position and that the VP of Human Resources would tell her where she would transfer when he returned from vacation — two weeks later.  Thereafter, Dollar sought several extensions of her leave of absence and provided medical documentation supporting her continued absence. When she could not return to work immediately, Dollar was terminated.

Thud.  That’s the sound of the employer smack down after a trial court later found that the employer had interfered with Dollar’s FMLA rights when it provided her no FMLA certification form and no notice of her FMLA rights following her request for leave.  Dollar v. Smithway Motor Xpress (pdf)

Insights for Employers

The Dollar case serves as a valuable reminder that we must do a better job recognizing when an employee has put us on notice that the requested absence might be covered by the FMLA.  A few reminders are worth noting:

  1. As an initial matter, when an employee with the last name “Dollar” sues you, be very, very afraid. This is not good karma.    
  2. On a more serious note, as we know (or should know), employees are not required to cite specifically to the “FMLA” as a reason for their absence; a bullhorn also is not necessary. The employee need only provide enough information to indicate that the leave of absence might be covered by the FMLA. If the employee has provided this information, the employer then has an obligation to either inquire further to determine whether the FMLA is in play or provide the employee a notice of her FMLA rights and a certification form.
  3. No. 2 immediately above surely is ambiguous.  I wish the regulations provided more guidance to employers on this point.  But when there is any doubt as to whether FMLA applies, ask questions of your employees!  I’ve shared before many of the questions you can ask your employees to help you determine whether the absence might constitute FMLA leave.  Access those questions here.
  4. Beware of employees who tell you they are in the emergency room for their own or a family member’s medical issue.  Courts differ on whether this alone is enough notice of the need for FMLA leave.  Just last month, for example, a court found in Lanier v. Univ. of Texas Sw. Med. Ctr that an employee’s text message indicating that she was in the emergency room with her father was not enough to notify the employer of the need for FMLA leave.  Lanier was a great decision for employers, but I’m afraid it gave employers a false sense of security that will result in lax FMLA compliance.  Notably, just last year, I wrote about another court that found that a similar “emergency room” notification from an employee was enough to put the employer on notice of the possible need for FMLA leave! (Lichtenstein v. University of Pittsburgh Medical Ctr.). So, how a court would handle these “emergency room” situations is as clear as mud. 
  5. Training your managers about their obligations under the FMLA is imperative.  As we see from the Dollar case, even the VP of HR could have used some FMLA training.  The cost of not training your managers in this area of the law is far more severe — among others, you risk losing a great deal of money in litigation (just ask Dollar!).  Take these obligations seriously and spend the money now to train your managers.